The new Netflix documentary series, Making a Murderer, has become the topic of water cooler discussions, Facebook status updates, and news editorials. The documentary centers on Steven Avery, a rural Wisconsin man whose family owns an auto salvage yard. It’s a story of tragedy, revenge, and corruption. For 10 one-hour episodes, viewers are able to watch the carnage that the justice system placed on Steven and his family throughout his life. In the process, the series raises an innumerable amount of legal issues, some of which I address briefly here:
1. The Legend of Len Kachinsky
It is common to hear defendants refer to their public defender as a “public pretender.” It is also common for defendants to ask their appointed lawyer if they should “get a real lawyer.” Defense attorneys often get a bad rap, especially court appointed attorneys.
It is attorneys like Len Kachinsky that are to blame for such a reputation. Len Kachinsky represented Steven Avery’s nephew who was also charged with murder for assisting Steven Avery in assaulting and killing Teresa Halbach. Before even meeting his client, he admitted his client’s guilt to the media. He hired an investigator who went to extraordinary lengths to coerce an unreliable written confession from his client, which he then provided to investigators. He then allowed his cognitively impaired client to be interrogated without him present. He acted as though his job was to assist in the prosecution of Steven Avery.
Len’s duty was to his client. A defense attorney’s duty is always to his client. As someone who takes both retained and appointed cases, I treat all cases the same. I do not use one version of the Constitution for retained clients and another version for appointed clients. What Len Kachinsky did is deplorable and repulsive and he should be disbarred for it. People watching this documentary need to know that Len Kachinsky is not the rule; he is the exception to the rule. The majority of defense attorneys are client-focused representatives, as they should be.
2. The Illusion of Parole
In 2002, the U.S. ruled that statutes that would impose a mandatory sentence of life in prison without the possibility of parole are unconstitutional. This has prompted changes in many state laws including in Michigan. There are now two sentencing options for juveniles convicted of an offense that requires such a mandatory sentence for adult offenders. After a hearing, the judge can either impose a sentence of life in prison without the possibility of parole or any term of years. If the court imposes a term of years, however, the minimum sentence (when they would first be eligible for parole) must be between 25 and 40 years.
The problem lies in the fact that the average life expectancy for juveniles sentenced to life in prison is only about 50 years old. Statutes that call for such a high minimum sentence make the opportunity for parole largely illusory. In the documentary, Brendan Dassey, received a sentence that would make him eligible for parole beginning in 2048. At that time, Brendan Dassey will be 59 years old. A new challenge needs to be made to Michigan’s juvenile sentencing statute and similar statutes enacted by other states. States want to give the appearance that they are in compliance with the U.S. Supreme Court’s order without actually giving effect to the heart of the ruling.
3. Our Justice System is Not Perfect
As someone who has spent time studying our justice system, I truly believe that we have the best justice system in the world. In the Declaration of Independence, our founding fathers listed among the grievances against the King, the fact that the King had made judges dependent on the will of the King making them biased and that the King had deprived them of the right to a trial by jury. Our country was founded by people who longed for a fair justice system.
Still, as well intentioned as we are when it comes to the manner in which people are tried and convicted, mistakes do happen. The Innocence Project has shown us this. The Innocence Project uses DNA testing to help exonerate people who have been wrongly convicted. To date, more than 300 people have been exonerated as a result of their work, including three people who served time on Death Row. Many of these people were serving time for sexual assaults. But, how about those who didn’t commit sexual assaults and those for which there is not DNA evidence to exonerate them? As someone who has a front row seat to see our justice system in action, I can say that I know that mistakes are made despite our best efforts to avoid such a tragedy. For this reason, I cannot support the death penalty. As it is now, there is too much room for error.
All this being said, there is one issue raised by the documentary that remains for me to answer. Do I think that Steven Avery murdered Teresa Halbach? The unsatisfying answer is that I do not know. I saw only a few hours of a trial that lasted about 200 hours. To think that I could give any sort of educated answer based on that alone is absurd. The evidence the show presents was troubling to say the least and most certainly led to concerns that evidence was fabricated and planted.